Posted by Gemma Ospedale, Partner
‘Helping a charity understand TUPE (Transfer of Undertakings) for their local authority contracts’
Certitude is a charity based in Balham which runs mental health and learning disabilities social care services.
I was asked by their senior staff, directors and HR personnel at the charity to help them understand more about TUPE* and related employment law. They tender for a lot of work with local authorities and they needed a comprehensive overview of how TUPE operates, together with practical advice and guidance on how to deal with new staff coming in from local authority services and other social care organisations.
Naturally, there are also concerns about budget constraints and the necessary restructuring which often has to happen as a result of these tendering processes where staff are transferred through TUPE. It is increasingly the case that when they tender for a piece of work (and this applies to all social care organisations) they have to run the service on a reduced budget from that which was given to the previous service provider. Therefore they have to consider how best to run the service and whether they need to restructure to provide the services differently.
If staff come over under TUPE the new employers are restricted in what they can and cannot do because of the law. What they wanted was practical guidance on how they can undertake restructuring and change terms and conditions, lawfully under TUPE.
I designed and delivered an interactive seminar for them – conveying the law but in the context of their situation and providing lots of practical advice. I took them through the latest case law on economic, technical and organisational reasons entailing changes in workforce, which can be a defence to dismissals or changes to terms and conditions which happen in connection with a transfer. I also guided them through how to identify whether staff are “assigned” to the service transferring.
We had an interesting and lively debate throughout the seminar. My talk used slides to help them assimilate all the information, examples and advice and welcomed questions throughout. At the end of each session, morning and afternoon, there was a case study with several questions based on the topics we covered during that session. Again, this engendered a lot of interesting comments and discussions on the solutions.
One of the comments which came at the end from their HR director was that it would be a useful talk for social care organisations generally because they are all involved in tendering with local authorities. If any other social care organisations would be interested in a similar event, please let me know.* What is TUPE? The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) protects employees’ terms and conditions of employment when a business is transferred from one owner to another, or the provision of a service changes provider, either to another organisation or back in house to the original contractor. Employees of the previous owner when the business changes hands automatically become employees of the new employer on the same terms and conditions. It’s as if their employment contracts had originally been made with the new employer. Their continuity of service and any other rights are all preserved. Both old and new employers are required to inform and consult employees affected directly or indirectly by the transfer (Source: ACAS)
It pays to employ the right employment solicitor